Fernandes

The second instruction (see folio 106 of Transcript) asked by defendant and given by the Court is not good law in this, that the Court instructs the jury that if the plaintiff contributed, in any degree, to the injury, he cannot recover, thereby holding him responsible, not for ordinary care and caution, and such care and caution as a prudent man would exercise under the same circumstances, but for the greatest and gravest caution or the slightest negligence. There might have been negligence in both parties, and yet the plaintiff entitled to recover. (Sedgwick on Damages, 580; Clayard v. Dethich, 12 Q. B. 489; Wharton’s Law of Negligence, 341; Cooh v. Champlain Transportation Co. 1 Den. 439 ; Trow v. Vermont Central Railroad, 24 Yt. 497; Herwhacher v. The C. C. R. R. Co. 3 Ohio St. 172 ; N. C. R. R. v. State, 29 Md. 553 ; B. & O. R. R. v. Trainer, 33 Md. 342 ; Isbell v. The N. Y. & New Haven R. R. Co. 27 Wend. 404 ; Sills v. Brown, 9 Car. & P. 613.)

McHinee & Welby, for the Respondent.

A party whose negligence is the proximate cause of the accident cannot recover for the injury sustained. (Flemming v. The W. P. R. R. Co. 49 Cal. 253 ; Deville v. S. P. R. R. Co. 50 Cal. 383 ;…